Minnesota Journal of Law & Inequality Volume 26 Issue 1 Article 5 June 2008 Pregnant Women and the Fourteenth Amendment: A Feminist Examination of the Trend to Eliminate Women's Rights during Pregnancy Nora Christie Sandstad Follow this and additional works at: https://lawandinequality.org/ Recommended Citation Nora C. Sandstad, Pregnant Women and the Fourteenth Amendment: A Feminist Examination of the Trend to Eliminate Women's Rights during Pregnancy, 26(1) LAW & INEQ. 171 (2008). Available at: https://scholarship.law.umn.edu/lawineq/vol26/iss1/5 Minnesota Journal of Law & Inequality is published by the University of Minnesota Libraries Publishing. Pregnant Women and the Fourteenth Amendment: A Feminist Examination of the Trend to Eliminate Women's Rights During Pregnancy Nora Christie Sandstadt "If the fetus is a person, there are no limits on the state's power to police and punish pregnant women .. Introduction While pregnant, a woman is no longer entitled to the full scope of rights she held before her pregnancy. Two years ago, Maryland forced a woman to give birth in her jail cell after an inconsistent sentence; 2 unlike the standard practice of release, she received a jail sentence because she was pregnant. 3 Some states commit pregnant women against their will for consuming alcohol while pregnant. 4 Upon suspicion of maternal substance abuse, the government often removes children from their mother's custody at birth. 5 As states and the federal government have expanded the t. J.D. expected 2008, University of Minnesota Law School; B.A. 2001, University of Minnesota, Morris. This Article has benefited from the editorial abilities of Mary Patricia Byrn, Molly Given, Steve Barrows, and the staff of Law and Inequality:A Journalof Theory and Practice. Special thanks to my family and friends for their wisdom and support, especially Nathan LaCoursiere, Christie Sandstad, Douglas Sandstad, and Tundra Sandstad. 1. Lynn M. Paltrow, Punishment and Prejudice: Judging Drug-Using Pregnant Women, in MOTHER TROUBLES, RETHINKING CONTEMPORARY MATERNAL DILEMMAS 59, 76 (Julia E. Hanigsberg & Sara Ruddick eds., 1999), available at http://advocatesforpregnantwomen.org/file/punishment%20and%20prejudice- Final.pdf. 2. Julie B. Ehrlich & Lynn Paltrow, Jailing Pregnant Women Raises Health Risks, WOMEN'S ENEWS, Sept. 20, 2006, www.womensenews.org/ article.cfmldyriaid/2894 (last visited Nov. 4, 2007) (describing Kari Parson's delivery at the Jennifer Road Detention Center). 3. Id. ("Though standard practice is to release people arrested for probation violations on their own recognizance until their later court dates, the judge in Parsons' case sent her to jail, citing his interest in protecting the fetus's health."). 4. David C. Brody & Heidee McMillin, Combating Fetal Substance Abuse and Governmental Foolhardiness Through Collaborative Linkages, Therapeutic Jurisprudenceand Common Sense: Helping Women Help Themselves, 12 HASTINGS WOMEN'S L.J. 243, 249 (2001) (noting that Minnesota, South Dakota, and Wisconsin permit this practice). 5. Id. at 250. Law and Inequality [Vol. 26:171 rights of fetuses, the number of pregnant women being held in jails and in hospitals because of their actions during pregnancy has also increased. 6 Women's constitutional rights are violated when the justice system treats women unequally due to their condition of being pregnant. 7 The legal precedent in the United States regarding maternal rights and fetal rights creates a legal riddle, from Roe v. Wade's grant of privacy rights to women in their health care decisions s and denial of Fourteenth Amendment personhood to fetuses, 9 to the 2004 Unborn Victims of Violence Act's ("UVVA") grant of federal personhood to fetuses. 10 If a fetus has rights, and its rights are violated, can the violator be prosecuted differently depending upon her relation to the fetus?" One thing is clear: the recent trend to increase fetal rights through both judicial and 12 legislative actions is prompting a reduction in women's rights. 6. Id. at 244 (noting the increase in prosecutions of pregnant women). 7. See Deborah Tuerkheimer, Conceptualizing Violence Against Pregnant Women, 81 IND. L.J. 667, 688-89 (2006) ("Legal recognition of fetuses as persons whose rights have been violated . .reflects and reifies a particular conception of pregnant women and their relationship to the developing fetus. This, in turn, necessarily structures relations between pregnant women and the state. More precisely, recognition of fetal victimhood has dictated heightened governmental control over women's bodies and lives."); see also Paltrow, supra note 1, at 20 ('The possibilities for denying women's freedom are not the fantasies of lawyers engaged in slippery slope arguments, but rather current trends in the ever increasing effort to win legal recognition of the fetus and to undermine and ultimately abolish women's rights."). 8. Roe v. Wade, 410 U.S. 113, 152 (1973) ("[T]he court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution."). 9. Id. at 158 ("All this ... persuades us that the word 'person' as used in the Fourteenth Amendment, does not include the unborn."). 10. Unborn Victims of Violence Act (UVVA), 18 U.S.C. § 1841 (2004) ("[The term 'unborn child' means a child in utero, and the term 'child in utero'. means a member of the species homo sapiens, at any stage of development, who is carried in the womb."). 11. See id. (excepting the mother as a potential violator under the law). 12. See Brody & McMillin, supra note 4, at 243-44 ("Over the last decade, states have increasingly prosecuted women for using drugs or alcohol while pregnant and modified their civil child abuse and neglect statutes to foster the civil commitment of mothers and the removal of children in their care."); see also Elizabeth Spiezer, Recent Developments in Reproductive Health Law and the ConstitutionalRights of Women: The Role of the Judiciary in Regulating Maternal Health and Safety, 41 CAL. W. L. REV. 507, 526 (2005) ("Defining a fetus at any stage of development as a 'human being' and declaring its termination as homicide or child abuse is not a truthful or effective means of curtailing violence against women or protecting children. Rather, such statutes create a false definition of a woman's pregnancy and place her in a role as secondarily important as compared with the importance of her pregnancy."); Tuerkheimer, supra note 7, at 696 (describing how the UVVA acts to "sever the interests of fetus and pregnant woman, ultimately furthering an agenda of control over women's bodies and lives"). 2008] PREGNANT WOMEN'S RIGHTS Roe, growing ever distant in the rearview mirror, now appears as the peak of women's reproductive autonomy, not its commencement. Fetal rights advocates found the seeds of their arguments within Roe's holding. 13 Roe established that, because the state's interest in potential life becomes compelling at twenty- four weeks, 14 the state's interest will overcome a woman's rights to privacy and bodily integrity with few exceptions from that point forward. 15 If the state becomes a watchdog for fetuses and restricts the behavior of pregnant women, then at some point, this state intervention challenges the constitutional rights of the pregnant woman. The question persists: where do we draw the line between a woman's autonomy and the state's interest in fetal rights? This fetal rights trend has far-reaching constitutional and societal implications, and the legal lines that will be drawn may not parallel the moral lines that popular opinion prefers. Though moral issues are critical to this question, this Article's focus is limited to the constitutional concerns. Part I of this Article examines the basis for maternal and fetal rights in the United States. Part II documents the steady increase in according rights to fetuses and the resulting reduction of pregnant women's rights. Part III explores how this increase in fetal rights constitutes an infringement on pregnant women's equal protection rights. Finally, Part IV argues that a concurrent violation of pregnant women's right to privacy also occurs. The Article concludes that, in light of constitutional protections and the Pregnancy Discrimination Act of Title VII,16 both the prosecution of and the involuntary commitment of pregnant women for substance use is a violation of their rights and must not be sustained. 13. See Lisa McLennan Brown, Feminist Theory and the Erosion of Women's Reproductive Rights: The Implications of Fetal Personhood Laws and In Vitro Fertilization,13 AM. U. J. GENDER SOC. POL'Y & L. 87, 91 (2005) (referencing "Roe's failure to clearly define what rights to personhood a fetus may hold" as the instigating factor for much of the increase in demand for fetal rights, which has "allowed states to undermine the Supreme Court's holding"). 14. Roe, 410 U.S. at 164-65 ("For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion .... "). 15. Id. at 165 (citing an exception to the exercise of the State's interest "where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother"). 16. Pregnancy Discrimination Act (PDA), Pub. L. No. 95-555, 92 Stat. 2076 (1978) (codified at 42 U.S.C. § 2000e(k) (2006)). Law and Inequality [Vol. 26:171 I. The State of Maternal and Fetal Rights Before 1984 Historically, pregnancy fell into the private sphere and went unregulated by the state. 17 Laws regulating abortion were the exception to this standard, and eventually became the flash point for the women's movement of the 1960s and 1970s.18 The language of "choice," which developed to describe individual control over reproduction in the movement to legalize abortion, prompted a backlash centered on the fetus as an individual with rights.19 The notion of fetal rights that originated in the right-to- life movement expanded beyond the issue of abortion to include wrongful death claims, 20 prosecutions for child abuse 21 and 17.